B&D Australia Pty Ltd

[2024] FWCA 681

[2024] FWCA 681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

B&D Australia Pty Ltd

(AG2024/254)

B&D AUSTRALIA PTY LTD KILSYTH ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 21 FEBRUARY 2024

Application for approval of the B&D AUSTRALIA PTY LTD KILSYTH ENTERPRISE AGREEMENT 2024

1. An application has been made for approval of an enterprise agreement known as the B&D AUSTRALIA PTY LTD KILSYTH ENTERPRISE AGREEMENT 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by B&D Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 14 February 2024.

1. The notification time for the Agreement under s.173(2) was 4 April 2023 and the Agreement was made on 25 January 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 15 February 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the incorrect year in the title of the Agreement in the NERR (2023) had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. In submitting the agreement for approval, the employer declared that the access period for employee consideration prior to voting on the agreement was shortened to 6 days as requested by the AMWU with mutual agreement from the employer, seeking to rely on the Statement of Principles at paragraph 5(b).  As notification time for this application was 4 April 2023, the Statement of Principles is not applicable in this regard. However, the employer has submitted and provided supporting material indicating all employees received the required documentation electronically on 19 January 2024 and that voting occurred on 25 January 2024, on the 6^th day of the access period.

1. I have considered this deficiency in light of the submissions made and the history of bargaining conducted by the parties in the present circumstances, and I am satisfied, taking into account the provisions of s.188(2), that employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has provided written undertakings, dated 19 February 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 15 September 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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